NLRB Attack on Social Media Policy: What Does it Mean?

As you may have seen reported in the New York Times and elsewhere, a regional office of the National Labor Relations Board - the independent federal agency that oversees collective bargaining issues - is claiming that a Connecticut ambulance company's social media policy was wrongly invoked to terminate an employee who complained about her supervisor in a Facebook post.

While the case is getting a fair amount of media attention because of its novelty, I want to put the matter in some perspective and also share with you some of the thinking that goes into the guidance we at PulsePoint provide to companies developing their own social media policy.

Three things make this case worth paying attention to:

The NLRB's legal theory that the employer's Internet policy went too far by prohibiting disparaging remarks and by requiring the company's permission before saying anything about the company.

The potential application of that theory to all workplaces, not just those with labor union issues.

The extension of the employer's Internet policy to private use, at home, on the employee's own time.

According to a press release the NLRB recently issued describing the case, the employee had been the subject of a customer complaint, and was angry at her supervisor for not allowing her Teamsters representative help her craft her response. After she got home that evening, the employee aired the grievance on her Facebook page, which generated supportive responses that in turn generated still more negative comments from the employee.

The employer discovered the postings (the NLRB release doesn't say how), and ultimately terminated her for violating the company's Internet policy.

What interests me more than the specific facts of this case - which remain in dispute, and which are complicated by the employee's use of vulgarity and a potentially defamatory statement about the supervisor - is the NLRB's theory that the employer's Internet policy violated the National Labor Relations Act by its overbreadth. So the first question is, do most other companies ban "disparaging" remarks or require the employee to ask permission before discussing any work-related subject online?

Recently, PulsePoint Group surveyed the social media policies of a group of Fortune 500 companies - including a large retail chain, a large industrial company, a pharmaceutical company, a consumer products company, and others - and found that many of them address, to varying degrees, the personal social media activity of their employees.

None of them, however, go so far as to prohibit "disparaging" statements or require the company's permission before addressing matters relating to employment. They do, however, address matters in which the company has a legitimate interest, including:

Unauthorized use of the company's name, logo, and other intellectual property

Defamation or harassment of employees, or disclosure of other employees' personal information

Communications that may violate the securities laws, such as unauthorized statements during "quiet" periods, improper disclosure of financial information, etc.

Some companies also provide guidelines on "netiquette." Unlike those prohibitions I listed above, this guidance is not intended to be the basis of disciplinary actions, but simply to help employees stay out of trouble online.

While the NLRB action against the ambulance company bears watching, I don't see anything in it that should prevent companies from continuing to adopt both dimensions of these social media policies - the clear prohibitions and the more gentle guidelines -- and enforcing them when necessary. All of these elements can be effectively incorporated into a social media policy without going so far as to ban all "disparaging" (i.e., negative) comments or requiring the employer's permission before discussing any topic relating to work. (Note that a key difference between "disparaging" and "defamatory" is that "disparaging" information may be true while "defamatory" statements are, by definition, false.)

Thus, even if the courts ultimately uphold the NLRB theory that this employer's policy went too far (and it's no certainty that they will), it's clear to me that effective social media policies can be crafted without crossing that line.

Finally, will employers who have never before needed to contend with the NLRB suddenly find it nosing around their business? Probably not. On one hand, it's true that the law's application isn't limited to disputes involving unions. As the employer-oriented labor law practice at Morgan Lewis & Bockius points out, section 7 of the National Labor Relations Act protects employee communications in all settings - unionized and otherwise - and the Supreme Court has held the employer cannot interfere with those communications in "channels outside the immediate employee-employer relationship."

But, on the other hand, this case does involve a unionized setting and also includes a dispute over whether the Teamsters rep was excluded from the process. Would the NLRB have been involved in the absence of either a collective bargaining agreement or an effort to secure union representation? Not likely, in my view. There's nothing in this case that suggests to me that the NLRB is poised to create a whole new niche for itself in policing the social media policies of U.S. employers. And such a prospect was made even less likely with the election of a Republican majority that will take over the NLRB's overseers in the House next January.

Still, the case sheds worthwhile light on where the legal boundaries may lie as regulators, like employers, adapt time-worn concepts to evolving forms of online communication.

Bill Feldman is a senior counselor for PulsePoint Group and is a practicing attorney in Washington, D.C. This information does not constitute legal advice. Persons or organizations requiring legal advice should seek the services of a competent licensed professional in the appropriate jurisdiction.